Annulment is a civil court process that declares a marriage never existed. You can only get an annulment in very limited situations. This is not the same as a religious annulment, which can only be granted by your church and has no legal effect on your marital status.
Many people think an annulment is an easier or quicker alternative to getting a divorce, but this is simply not true. Because the situations in which an annulment could be granted are limited and very specific, you should seek the help of a lawyer if you want an annulment.
In North Carolina, a marriage that is shown to be invalid can be annulled. There are two types of invalid marriages in North Carolina - "voidable marriage" and "void marriage."
A "voidable marriage" includes the following situations:
- incest, meaning the husband and wife are closer than first cousins (for example: double first cousins, uncle/niece, siblings)
- “false pretenses,” meaning the husband and wife got married believing the wife was pregnant, but then separated within 45 days of the marriage and no child was born within 10 months of the separation
- either spouse was physically impotent at the time of the marriage (impotence must be diagnosed by a doctor)
- either spouse was “not of sound mind” and incapable of entering a contract at the time of the marriage, or
- one of the spouses was under the age of 16 at the time of the marriage (unless there was a court order allowing marriage between ages 14-16 when the wife is pregnant).
It is important to understand that voidable marriages can be made made legal or “ratified” by the actions of the husband and wife. If the husband and wife continue to live together after the marriage and then have a child together, their marriage may become valid. If this happens, the couple would have to ask for a divorce - not an annulment - to end their marriage.
In North Carolina, the only absolutely "void marriage" is when there is bigamy (where one spouse was already legally married to some other living person). A bigamous marriage is never made valid by the actions of the spouses and can even be challenged after the death of one of the spouses. A bigamous marriage is automatically void and an annulment is not legally needed to make the marriage void. However, even in this situation, you should still seek a court order that annuls your marriage in order to avoid future confusion about your marital status.
To get an annulment, one spouse will file a case with the court in the county where the husband or wife lives. The filing spouse bears the burden to prove to the judge that the marriage is either voidable or void. Because annulment is a complicated claim to make, you should seek the help of a lawyer to file your case.
When a marriage is annulled, the effect is that the marriage never existed and that you were never married. This is different from divorce, where a marriage exists but is then ended by a court order.
Children of an annulled marriage are considered children of the marriage and the husband and wife are eligible to seek court orders on child custody/visitation and child support. Post-separation support (payments to one spouse made by the other spouse) and attorneys’ fees are available if the court decides to award them. However, permanent alimony and “equitable distribution” (court-ordered distribution of property) are not available if marriage is annulled.
N.C. Gen. Stat. 51-3 (Void and voidable marriages)
N.C. Gen. Stat. 51-4 (Prohibited degrees of kinship)
N.C. Gen. Stat. 50-11.1 (Children of annulled marriage)